I’m currently writing about a work called Epieikeia: A Dialogue on Equity in Three Parts, which was composed by Edward Hake in the late sixteenth century. Hake was a Puritan, a poet, and a local government official, who hoped that his treatise would bring him to the King’s attention and secure his advancement. If I’m honest, I first became interested in this work because it’s more than a little bizarre.

For a start, it’s written in dialogue form—as an imaginary conversation between Hake and two friends, Lovelace and Eliott. The conceit is that the three men have gathered before dinner when Eliott starts pressing Hake to explain to them the nature of equity (as you do). Hake is initially reluctant, but is soon convinced to spend three afternoons (or 140 pages) expounding his ideas.

The literary dialogue was popular in Renaissance Europe, and many writers used it to draw out a range of views and ambiguities around their topic. Hake… did not. Lovelace and Eliott are really only there to repeat his conclusions and tell him how clever he is. (Sample contribution from Eliott: ‘I acknowledge to have received both pleasure and profitt [from Hake’s discussion], pleasure in the variety of the matter, and profitt in the good end and purpose that hath byn of it. And this I must confesse, that had it not byn for this and your former speache, I sholde have remained in error…’) It’s a shame that this mode of writing has fallen out of fashion—it must be good for the self-esteem and a helpful cure for writer’s block.

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We in the Centre for Law and History Research enjoy nothing more than curling up with a good book! For our first post this year, we caught up with another legal historian, Andreas Televantos (University of Oxford), whose book Capitalism before Corporations: The Morality of Business Associations and the Roots of Commercial Equity and Law (OUP 2020) recently won the SLS’s Peter Birks Prize for Outstanding Legal Scholarship. Our roving reporter went to find out more…

Andreas, congratulations on winning the Peter Birks Prize! Can you tell us a little about your book?

The CLHR is delighted to welcome its newest member, Dr Andrew J. Bell. Dr Bell joins us as a lecturer at the University of Bristol Law School from the Institute for European Tort Law in Vienna. His research focuses on the law of obligations, comparative law and – excitingly for us! – comparative legal history. Comparative legal history uses and combines comparative and historical analyses to gain new insights into the development of legal systems. Dr Bell introduces us to some of the travails and triumphs of the comparative legal historian below…

Though a newcomer to the Law School, I don’t want to discuss my journey to transfer here (a long tale of rescheduled Austrian Airlines flights and overfull cars trapped in motorway chaos), but instead a research trip a little earlier this year. Shortly before joining the School, I was fortunate enough, despite the coronavirus pandemic, to be afforded a research scholarship to support a stay in Hamburg for my comparative historical work – such stays are a vital form of undertaking for both comparatists and historians, and something obviously much-missed since the public health crisis began.

As matters transpired, legal history could feature prominently from the very start of the trip. I was disturbed constantly during my travel quarantine period in Germany by a Glockenspiel on the revivalist Kontorhaus building opposite my first hotel room; a Glockenspiel that daily depicts the executions of Klaus Störtebeker and his pirate crew (replete with swinging axe, toppling heads and bloodstains). Was this a morality tale for my personal improvement? A hardcore boast of a proud justice tradition? A threat of dire consequences if I breached my quarantine? After a week isolated in one room with temperamental internet connections and a view of little else, I could be sure of nothing.

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In August 1850, a jury in Liverpool heard the case of Wright v. Holgate. The jurors’ job was to make a decision about the ‘legitimacy’ of a child, Tom Wright. Was this three-year-old the ‘lawful’ offspring of Thomas Wright, butcher and cattle dealer, and his late wife, Susannah, or was he another man’s son, and thus a ‘bastard’ (specifically, an ‘adulterine bastard’)? The question had arisen during a dispute about property of the Holgates, Susannah’s family, who were cattle dealers of some standing in the Halifax area. If Tom was ‘legitimate’, he had a share; if he was a ‘bastard’, he did not. The jury heard a selection of views on the former spouses from acquaintances and neighbours, brought in to comment on whether they had had the opportunity to have sex at the relevant time, so that Thomas might be Tom’s biological father, and on the character of Susannah. She was portrayed, in the somewhat gossipy testimony,  as ‘no better than she ought to be’, and given to entertaining a variety of men other than her husband at her house. After only a short discussion, the verdict of the twelve male jurors came back: ‘bastard’.[1]

As far as the law of the time was concerned, that was the end of Tom Wright’s importance, and, since the relevance of ‘bastardy’ in legal and social terms diminished massively over the course of the twentieth century, this case might well raise in the minds of modern legal scholars that cold dismissive phrase: ‘of no more than antiquarian interest’. Even so, I am going to use this post on our newly-launched blog to suggest that there are, in this case, and in this area, some things which are worth the attention of thoughtful legal scholars of the twenty-first century, as well as those of us who are unashamed of our antiquarian tendencies. 

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The invention of the printing press revolutionised law reporting. Medieval lawyers had relied less on written texts than on their profession’s ‘common learning’, which was passed down orally at the Inns of Court. Students learnt by observing the courts at work, but also by listening to senior lawyers discussing the law at moots or even over dinner. They rarely cited specific case reports in court, instead referring vaguely to ‘our books’. More precise references would have been unhelpful – after all, manuscript law reports were difficult to access and not necessarily consistent. The appearance of reliable and widely-distributed printed reports encouraged lawyers to cite cases much more extensively.

In the sixteenth century, though, the printed reports available were often decades out of date. Lawyers therefore relied on circulating manuscript case reports to keep on top of new material, and to glean information that the printed reports didn’t provide. We can get an insight into how these cases were shared between lawyers by looking at a manuscript report of the 1567 ‘serjeants’ case’. Serjeants were an elite rank of barristers with special privileges. When a new batch of serjeants was appointed, there would be celebratory feasts and amusements, including a serjeants’ case: a hypothetical case invented for the new serjeants to debate. (Imagine newly-appointed QCs taking part in a moot for their colleagues’ entertainment.)

Like many moot problems today, the serjeants’ case of 1567 was based on a real contemporary case. It concerned the intricacies of will-making. For example, if a testator made a will of ‘all his land’, but acquired new land after making the will, would the new land pass by the previous will? Questions like this were very controversial. Wills of land were new to the common law – they had only been permitted by the 1540 Statute of Wills – so lawyers were still unsure exactly how they should work. The serjeants’ case would have been watched with interest to see what these top barristers thought about the problem – perhaps it would give some clues about what would happen when the real case was argued the following year.

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